Utah's water future in court

This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

By james m. oliver

For decades, Salt Lake City and much of the rest of Utah have depended on the Colorado River as a reliable source of water. But that confidence could vanish before year's end if the U.S. Supreme Court declines to review a decision by the 10th U.S. Circuit Court of Appeals in Denver.

The issue at stake is water allocation among states.

The water of virtually all the West's major rivers, including the Colorado, is allocated according to interstate agreements called "compacts." A total of 26 compacts have been agreed upon, ratified by the negotiating legislatures and enacted into federal law by Congress. Dating back in some cases to the 1920s, they have provided the essential legal infrastructure for the growth of the West  a stable, legally binding distribution of water.

Last September, in a case involving Oklahoma and Texas (Tarrant Regional Water District v. Herrmann), the 10th Circuit reread language in the Red River Compact  a compact among Arkansas, Louisiana, Oklahoma and Texas  to mean that water-sharing among the signatories was voluntary, not mandatory. This begs the question, why did the states negotiate the complex agreement at all?

Here is the problem for Utah.

The decision turned on a provision common, in various wordings, to many of the nation's interstate water compacts, including the one governing the Colorado. The provision says that when one state gives another the right to tap its water, it does not give up the right to enforce state laws on the waterway or impose its environmental standards or anything else  other than the water itself.

This kind of "we mean what we say and nothing more" language is in almost every major contract ever written. But, amazingly, the 10th Circuit's three-judge panel read it to say that Oklahoma does not have to allow Texas the water guaranteed to it in the Red River Compact at all.

No act of legal revisionism by any court in the country has so much potential to generate economic disruption. If the Supreme Court declines to review, the ruling will become law in the 10th Circuit, covering Wyoming, Colorado, Utah, Kansas, New Mexico and Oklahoma.

Through these states flow such essential rivers as the Colorado (on which metropolitan areas from Denver to Salt Lake City to Phoenix to Southern California depend) and the Yellowstone (a major source of water for southeastern Montana and the state's fracking fields). Even the Arkansas River, from which, ironically, northern and much of western Oklahoma receive water, comes under the ruling.

Already, Wyoming has expressed opposition to diversion of allocated water bound for the Denver region despite the Upper Colorado River Compact's promises. Throughout the West, the vulnerable include all states that, like Utah, have regions dependent on compacted water and downstream from the river's source.

In short, if the Supreme Court decides not to hear this case, virtually every Western state will have no choice but to engage in what could easily become as many as two-dozen massively contentious negotiations.

In April, the high court asked U.S. Solicitor General Donald B. Verrilli Jr. whether it should take the case. His brief is expected in the fall or winter. The justices' ruling will come not long after that.

On small hinges, great doors swing. On this hinge will swing a vast future, for Utah, the American West and, ultimately, the entire country.

James M. Oliver is general manager of the Tarrant Regional Water District, a party in the lawsuit.